Sahidullah Munshi, J. - (1.) This appeal at the instance of Container Corporation of India Ltd. (in short CONCOR) the appellant herein is against an order dated 15th September, 2015, passed in A.P. No. 1509 of 2015. The said order dated 15th September, 2015 is quoted below: - - "The Court : The matter has appeared despite a substantive ad -interim order passed on September 4, 2015, only to afford the respondent an opportunity to disclose documents that may not have been available with Advocate for the respondent on the previous day. The respondent relies on the guidelines framed by the respondent in a writing of January 9, 2013 pertaining to public procurement policy. The respondent refers to the part therein at page 2 of the document which deals with micro, small and medium enterprises. The respondent submits that the overall bid made by the petitioner for the handling and transportation work was Rs. 4.04 crore which was higher than the overall bid of Rs. 3.69 crore of Western Carriers Private Limited. However, since the petitioner's bid of Rs. 2.72 crore for the handling part of the work was less than Western's Rs. 2.79 crore therefor, the work was split up between the petitioner and Western. The respondent says that since it has now been discovered that the petitioner had made a false declaration at the time of his application, the termination or annulment of the contract should not be interfered with. Such aspect of the matter has been considered in the order dated September 4, 2015. Since there is no additional ground that the respondent can show immediately to detract from the order dated September 4, 2015, such order will continue till the disposal of the petition. Affidavit -in -opposition be filed within a fortnight from date; reply thereto, if any, may be filed before the matter appears as an adjourned motion in the monthly list of October, 2015. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities."
(2.) By the said order the Hon'ble Single Bench has held that in his earlier order dated 4th September, 2015, an interim order had already been passed and which was directed to continue till disposal of the Sec. 9 application filed by Mr. T.N. Singh, the respondent herein. The Hon'ble Single Bench directed the parties to file their affidavits. The order which was passed on 4th September, 2015 is quoted below: - - "The Court : The grievance of the petitioner is that a contract awarded by the respondent corporation by the issuance of a letter of intent has been arbitrarily terminated for a minor mistake committed by the petitioner while obtaining the tender documents. The tender documents stipulated that a micro or a small enterprise registered with the Micro, Small and Medium Enterprises Department of the Central Government would be exempted from paying the costs of the tender papers of Rs. 2500/ - and would also be exempted from putting in the earnest deposit of Rs. 5 lakh. In the petitioner's application, the petitioner referred to being registered under the MSME department and the accompanying certificate indicated that the petitioner was registered in the medium category. The respondent verified the petitioner's registration with the MSME department and, upon satisfaction of the petitioner's registration, the petitioner was identified as eligible to be awarded the contract for handling a depot in Assam owned by the corporation as the lowest bidder. What is evident from the relevant letter of the MSME department dated June 17, 2015 is that it merely certified that the petitioner was registered with the MSME. It does not appear that it dawned on the corporation, whether at the time of receiving the petitioner's bid or at the time of making an enquiry with the MSME department, that the petitioner was neither a micro nor a small enterprise. Just as the petitioner had relied on his MSME registration, the corporation processed the petitioner's bid on the basis of the MSME registration and the verification thereof of June 17, 2015 as obtained from the relevant department. The earnest money that a bidder was required to deposit was, upon the bid being successful, to be treated as part of the security deposit. Upon the petitioner's bid being discovered to be the lowest for the handling part of the work, the petitioner has put in the requisite security deposit of Rs. 22 lakh, since the transportation part of the work has not been allotted to the petitioner. It appears that on a subsequent query of the corporation, the MSME department informed it that the petitioner was registered as a medium enterprise and was not entitled to the benefit extended by the corporation to micro and small enterprises. Following an initial notice of the corporation, to which the petitioner replied, a formal letter of termination was issued to the petitioner on or about August 28, 2015, by which time this petition had been made ready for filing. The letter of termination has been disclosed in a supplementary affidavit filed by the petitioner. The petitioner claims that in terms of the tender documents, certain benefits could be enjoyed by the bidder if such bidder was a micro or small enterprise. Apart from the exemption of the nominal cost of the tender documents of Rs. 2500/ - and the exemption of the earnest deposit of Rs. 5 lakh, according to the petitioner, if a micro or small enterprise bid within 15% of the lowest bid for the relevant work such micro or the small enterprise would be entitled to obtain 20% of the work at the L -1 price. The petitioner claims that there were no micro or small enterprise bidders in respect of the work and, as such, there was no prejudice suffered by any other bidder in the petitioner's bid having been accepted. The petitioner suggests that the MSME registration cited by the petitioner was in the mistaken belief of the petitioner that it was such registration which would entitle a bidder to the exemptions and benefits rather than the bidder being a micro or small enterprise. The petitioner says that the registration certificate or acknowledgement form as issued by the MSME department was appended to the petitioner's bid and the certificate clearly indicated that the petitioner was registered in the medium category. The petitioner claims that the petitioner did not attempt to deceive or otherwise mislead the corporation and it was a genuine mistake which has not resulted in any prejudice to either the corporation or to any other party. The corporation has cited clause 7.6 in its notice of termination. Clause 7.6 deals with the rights of the corporation to disregard bids, reject bids and the like in certain specified cases. Sub -clause (f) of clause 7.6 provides that if any tenderer "deliberately gives wrong information or suppresses/conceals any information/facts in his tender to make his bid favourable for acceptance ... or creates circumstances for the acceptance of his tender", the corporation would have the right to reject such tender at any stage of execution without any financial liability. To begin with, the petitioner's bid and the transaction has crossed the tender stage and upon the letter of intent being awarded. In terms of clause 7.2 of the tender documents, there is a deemed conclusion of the contract between the parties once the letter of intent is received by a bidder. Further, the petitioner did not describe himself as either a micro or a small enterprise and, though it is difficult to accept that the petitioner did not notice which categories of lesser enterprises were eligible for the exemption, the petitioner did not append a copy of the MSME registration which clearly revealed that the petitioner was registered as a medium category enterprise. But even if the petitioner attempted to pinch pennies, there may not have been any fraudulent or deceitful act indulged in by the petitioner. Prima facie, it does not appear that the petitioner attempted to deceive the corporation or did anything within the meaning of Sub -clause (f) of clause 7.6 of the tender documents which would entitle the corporation to reject the bid or terminate the contract. It may also be noticed that the corporation does not dispute the petitioner's contention that there was no micro or small enterprise bidder in the fray who may have been prejudiced by the petitioner's bid or the acceptance thereof. Prima facie, since it appears that the minor mistake on the part of the petitioner ought to have been condoned, upon the cost of the tender documents being obtained from the petitioner, the corporation is restrained from giving any effect or further effect to its notice of termination dated August 28, 2015. Instead of issuing directions for filing affidavits immediately, the corporation is afforded an opportunity to present any document or other material that may be in its possession when the matter appears next a week hence. There is no dispute that the tender documents contain an arbitration agreement and the interim measures sought by way of present petition under Sec. 9 of the Arbitration and Conciliation Act, 1996 pertain to the matrix contract governed by the arbitration clause. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities."
(3.) Before dealing with the aforesaid two orders dated 15th September, 2015 and 4th September, 2015, passed by the Hon'ble Single Bench, a little background of the Sec. 9 application filed by Mr. T.N. Singh (hereinafter referred to as the respondent) is required to be given and those are as follows: - - "Pursuant to a notice inviting tender (NIT) for handling and transportation of containers and cargo at Inland Container Depot, Amingaon, Assam for a period of four years, the respondent submitted its bid for the same. It is pertinent to point out that under the terms of the notice inviting tender, the tender documents were to be provided free of cost to entities registered under the Micro, Small and Medium Enterprises (MSME) Development Act, 2006. The respondent, being a medium enterprise within the meaning of the said Act, sought for the tender document free of cost. However, the cost for the tender document was Rs. 2,500/ - + VAT as mentioned in the tender form.";